DePaul Law Review Volume 66 Issue 1 Fall 2016: Twenty-Sixth Annual DePaul Article 10 Law Review Symposium Save Rock and Roll: A Look at Rights Afforded to Pre-1972 Sound Recordings and Why Federalization Should Be Granted Amanda Alasauskas Follow this and additional works at: https://via.library.depaul.edu/law-review Part of the Law Commons Recommended Citation Amanda Alasauskas, Save Rock and Roll: A Look at Rights Afforded to Pre-1972 Sound Recordings and Why Federalization Should Be Granted, 66 DePaul L. Rev. (2017) Available at: https://via.library.depaul.edu/law-review/vol66/iss1/10 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. \\jciprod01\productn\D\DPL\66-1\DPL108.txt unknown Seq: 1 10-APR-17 11:24 SAVE ROCK AND ROLL: A LOOK AT RIGHTS AFFORDED TO PRE-1972 SOUND RECORDINGS AND WHY FEDERALIZATION SHOULD BE GRANTED INTRODUCTION February 15, 1972––an important date in United States copyright protection history, especially as it pertains to sound recordings.1 When Congress rewrote the Copyright Act of 1909,2 it only included under federal protection those sound recordings “fixed” after Febru- ary 15, 1972.3 This left those recordings fixed before this date, affec- tionately known as “pre-1972s,” outside the scope of federal copyright protection and without a public performance right, an exclusive right of federal copyright protection.4 Due to this lack of federal protec- tion, pre-1972 sound recordings are subject to state laws, if any, which leads to vague and inconsistent standards regarding the rights that are afforded to these recordings.5 Unlike its predecessor, the Federal Copyright Act of 19766 provides rights to both the composition7 and sound recording8 of original musi- cal works. Section 102(a)(2) of the Copyright Act of 1976 provides protections for “original works of authorship fixed in any tangible me- dium of expression” in several categories, among them “musical works, including any accompanying words.”9 Section 101 defines “sound recordings” as works that are the result of “the fixation of a series of musical, spoken, or other sounds.”10 This definition does not include sounds that accompany audiovisual works, such as motion pic- 1. Brian G. Shaffer, Comment, Sirius XM Radio, Inc., Defendant: The Case for a Unified Federal Copyright System for Sound Recordings, 35 PACE L. REV. 1016 (2015). 2. Act of Mar. 4, 1909, Pub. L. No. 60-349, 35 Stat. 1075. 3. Shaffer, supra note 1, at 1016. R 4. Id.; see 17 U.S.C. § 106(6) (2012). 5. Shaffer, supra note 1, at 1016. R 6. Act of Oct. 19, 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§ 101–810 (2012)). 7. 17 U.S.C. § 102(a)(2) (2012). 8. Id. § 101. 9. Id. § 102(a)(2). 10. Id. § 101. 265 \\jciprod01\productn\D\DPL\66-1\DPL108.txt unknown Seq: 2 10-APR-17 11:24 266 DEPAUL LAW REVIEW [Vol. 66:265 tures.11 The nature of how the sound recording is embodied is irrele- vant to protection under the Act.12 Historically, due to the lack of a public performance right, radio broadcasters have used this loophole within the Copyright Act of 1976 to broadcast these recordings without the obligation of paying the owners of the recordings.13 Pre-1972 recordings include some of the most iconic musicians and recordings to date, including A Hard Day’s Night by The Beatles,14 You Can’t Always Get What You Want by the Rolling Stones,15 Can’t Help Falling in Love by Elvis Presley,16 and My Girl by The Temptations.17 Until recently, the royalty free per- formance of these sound recordings was an unchanged and even wel- comed standard, as the artists and record labels that owned pre-1972 sound recordings saw these free broadcasts as a form of free advertisement.18 In 2014, The Turtles—most famously known for their song Happy Together—under the band’s incorporation name of Flo & Eddie, Inc., filed suits against SiriusXM in New York, California, and Florida, and also against Pandora in California, two digital broadcasters.19 These lawsuits challenged this long-established standard, which enables broadcasters, especially digital and satellite broadcasters, not to pay for playing pre-1972 sound recordings.20 Due to recent decisions in favor of Flo & Eddie, Inc. in both New York and California, the re- cording industry, led by Capitol Records, has also filed suit against SiriusXM and Pandora, in California and New York, respectively.21 If the opinions in New York and California are upheld on appeal, it could change the face of copyright law, requiring not only digital 11. Id. 12. Id. 13. Noah Drake, Comment, Flo & Eddie, Inc. v. Sirius XM Radio, Inc.: Public Performance Rights for Pre-1972 Sound Recordings, 6 CALIF. L. REV. CIR. 61, 61–62 (2015). 14. THE BEATLES, A HARD DAY’S NIGHT (Capitol Records 1964). 15. THE ROLLING STONES, YOU CAN’T ALWAYS GET WHAT YOU WANT (London Records 1969). 16. ELVIS PRESLEY, CAN’T HELP FALLING IN LOVE (RCA Victor 1961). 17. THE TEMPTATIONS, MY GIRL (Motown Records 1964). 18. Drake, supra note 13, at 61–62. R 19. See Steve Gordon & Anjana Puri, The Current State of Pre-1972 Sound Recordings: Recent Federal Court Decisions in California and New York Against Sirius XM Have Broader Implica- tions than Just Whether Satellite and Internet Radio Stations Must Pay for Pre-1972 Sound Re- cordings, 4 N.Y.U. J. INTELL. PROP. & ENT. L. 336, 344 (2015); see also Stephen Carlisle, Flo and Eddie v. Sirius XM Radio: Have Two Hippies from the 60’s Just Changed the Course of Broad- cast Music?, NOVA SE. U. (Oct. 2, 2014), http://copyright.nova.edu/flo-and-eddie-v-sirius-xm-ra dio/. 20. Gordon & Puri, supra note 19, at 344. R 21. Id. at 344–45. \\jciprod01\productn\D\DPL\66-1\DPL108.txt unknown Seq: 3 10-APR-17 11:24 2016] SAVE ROCK AND ROLL 267 broadcasters, but also terrestrial AM/FM radio broadcasters to both ask permission and pay a fee to play pre-1972 sound recordings.22 This would change the landscape of the music industry in California and New York. This would also build a foundation for national pro- tection of sound recordings under the federal Copyright Act of 1976.23 Following the lawsuits against SiriusXM and Pandora, the Fair Play Fair Pay Act (FPFPA) of 2015 was introduced before Congress on April 13, 2015.24 The FPFPA sought to establish a public performance right for all sound recordings that are played on terrestrial AM/FM radio, allowing performers of sound recordings and labels to receive compensation for airplay.25 The FPFPA also encompassed what the previously introduced RESPECT Act wished to protect, a public per- formance right for pre-1972 sound recordings.26 The FPFPA would have ensured that the creators of pre-1972 sound recordings are fairly compensated and would also create a uniform fair market royalty standard.27 This Comment advocates for the inclusion of pre-1972 sound re- cordings under the Copyright Act of 1976 through the FPFPA, al- lowing for all recording artists, including those of pre-1972 sound recordings, to be paid for the public performance of their works. Part II of this Comment provides a general history of copyright law,28 cov- ering the original 1790 Act,29 the 1909 Act,30 and the modern 1976 Act,31 along with a discussion of the pre-1972 provision of the 1976 Act.32 Part II looks at past acts by the Copyright Office and Congress to bring pre-1972 sound recordings under federal protection,33 includ- ing: (1) the Copyright Office Report on Pre-1972 Sound Recordings;34 (2) the Digital Performance Right in Sound Recordings Act of 1995;35 (3) the Digital Millennium Copyright Act of 1998;36 (4) the Perform- 22. Id. at 345. 23. Id. at 358. 24. Fair Play Fair Pay Act, H.R. 1733, 114th Cong. (1st Sess. 2015). 25. See Casey Rae, A Look Inside the Fair Play Fair Pay Act, FUTURE OF MUSIC COAL. (Apr. 12, 2015, 3:12 PM), https://futureofmusic.org/blog/2015/04/12/look-inside-fair-play-fair-pay-act. 26. Id. 27. Id. 28. See infra notes 48–145 and accompanying text. R 29. See infra notes 59–72 and accompanying text. R 30. See infra notes 73–90 and accompanying text. R 31. See infra notes 91–127 and accompanying text. R 32. See infra notes 128–45 and accompanying text. R 33. See infra notes 146–217 and accompanying text. R 34. See infra notes 151–64 and accompanying text. R 35. See infra notes 165–71 and accompanying text. R 36. See infra notes 172–82 and accompanying text. R \\jciprod01\productn\D\DPL\66-1\DPL108.txt unknown Seq: 4 10-APR-17 11:24 268 DEPAUL LAW REVIEW [Vol. 66:265 ance Rights Act of 2009;37 (5) the RESPECT Act of 2014;38 and (6) the Fair Play Fair Pay Act of 2015.39 Part II concludes with descrip- tions of SiriusXM and Pandora,40 an introduction of the Flo & Eddie, Inc. v. Sirius XM Radio, Inc. cases,41 and other cases pertaining to pre- 1972 sound recordings.42 Part III analyzes the impacts of the Flo & Eddie cases,43 how terrestrial AM/FM radio could be affected,44 and ends with an analysis of the FPFPA.45 Part IV discusses the impact federalization of pre-1972 sound recordings would have on broadcast- ers and consumers, as well as the impact on the musicians and per- formers of these recordings.46 Part V concludes that pre-1972 sound recordings should be brought under federal protection and Congress should pass legislation similar to the FPFPA of 2015.47 II.